Obama Wins Georgia Ballot Challenge

President Obama's name should appear on Georgia's 2012 presidential ballot, in the official opinion of Judge Michael Malihi of Georgia's Office of State Administrative Hearings (OSAH), issued on February 3. Judge Malihi's decision is the result of hearings held January 26 on three separate actions brought by several Georgia residents. Under Georgia law, Secretary of State Brian Kemp had referred the challenges, filed last November, to the OSAH for a recommendation.

An earlier American Thinker article on the ballot challenges noted the absence of Obama's attorney, Michael Jablonski, from the hearings. Judge Malihi took note of the failure to participate in the opening page of his decision:

Ordinarily, the Court would enter a default order against the party that fails to participate in any stage of a proceeding...Nonetheless, despite the Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the merits of their arguments and evidence. The Court granted Plaintiff's request.

Based on the pre-hearing conference with the Judge, the plaintiffs expected an outcome of at least such a default judgment, and hoped that a ruling in their favor, based on the merits, was possible.

Two of the challenges, represented by attorney Van Irion of the Liberty Legal Foundation and Georgia Rep. J. Mark Hatfield, did not focus on Obama's place of birth or the infamous birth certificate. Rather, Irion and Hatfield contended that Obama, with his non-US citizen father, is not a "natural born" citizen according to the rule of statutory construction in the interpretation of the Constitution and existing Supreme Court precedent. (Further explanation of those assertions is contained in a comprehensive amicus brief submitted to the court, prepared by attorney Leo Donofrio.) The third challenge, represented by California attorney Orly Taitz, also addressed the validity of Obama's posted birth certificate and social security number.

Obama's attorney, Michael Jablonski, in his motion to dismiss the challenges, argued that the state had no authority to interfere in national elections. However, Judge Malihi, in his denial to Jablonski's motion noted that Georgia law specifically requires that "[e]very candidate...shall meet the constitutional and statutory qualifications for holding the office being sought" and that "[b]oth the Secretary of State and the electors of Georgia are granted the authority under the Code to challenge the qualifications of a candidate."

Judge Malihi's denial to the motion to dismiss also emphasized the rule of statutory construction:

Statutory provisions must be read as they are written...When the Court construes a constitutional or statutory provision, "the first step...is to examine the plain statutory language."..."Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden." ... [T]his Court is not "authorized either to read into or read out that which would add to or change its meaning."

In his sweeping denial of the Plaintiff's challenges, however, Judge Malihi did not mention the principle, and instead relied on the 2009 case of Ankeny v Governor, stating that "[t]he Indiana Court determined that a person qualifies as a natural born citizen if he was born in the United States because he became a United States citizen at birth."

Interestingly, Judge Malihi footnoted that particular statement with the assertion: "This Court recognizes that the Wong Kim Ark case was not deciding the meaning of 'natural born citizen' for the purposes of determining presidential qualifications; however, this Court finds the Indiana Court's analysis and reliance on these cases to be persuasive."

It must also be noted that the Indiana decision contains another similar and interesting footnote: "We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a 'natural born Citizen' using the Constitution's Article II language is immaterial."

In other words, Judge Malihi found more persuasive than the long-established principle of statutory construction, a State's Court of Appeals opinion and its unsupported contention that the Constitution's language "is immaterial."

In the 1898 case ofWong Kim Ark, the Supreme Court determined that Ark, born to non-citizen Chinese parents permanently and legally domiciled in the U.S., was a citizen (though it did not describe him as a "natural born" citizen). In its actual historical context, however, Ark's situation was governed by a treaty in effect between the U.S. and China -- a treaty that originally recognized the transfer of allegiance of Chinese making their permanent homes in America, but, as later amended, also prevented Ark's parents from ever naturalizing as U.S. citizens. In fact, as Donofrio explains, unlike other native-born children of alien parents of other nationalities, Ark was not born with the dual allegiance (i.e. dual citizenship) that many experts contend the 14th amendment's "subject to the jurisdiction" language was meant to prevent.

And according to the principle of statutory construction, the phrase "and subject to the jurisdiction thereof" would not be superfluous to the preceding phrase in the amendment's citizenship clause: "born or naturalized in the United States."

It was Obama's dual citizenship, the result of his having a non-citizen father temporarily resident in the U.S., that the plaintiffs in the Georgia challenges asserted precluded his "natural born" eligibility. Obama may have been born in the country, but he was not born completely subject to its jurisdiction, or in the words of one of the framers of the 14th amendment, "not owing allegiance to anybody else."

As to the specific claims in Taitz's challenge, the Judge found that "the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative value, and thus wholly insufficient to support Plaintiff's allegations."

Both Irion and Hatfield had also asked the court to recommend a finding of contempt for Obama's failure to appear in the proceedings. Judge Malihi did not agree, and in his decision merely wrote: "By deciding this matter on the merits, the Court in no way condones the conduct or legal scholarship of Defendant's attorney, Mr. Jablonski."

Georgia represents 16 electoral votes, which Obama lost in 2008 with 47%, so an Obama win in the state was not expected, even though now he is assured of having his name included on the ballot. However, the eligibility issue is still a major concern to many citizens, and "is gaining traction in other states, too, including Alabama, Tennessee, Arizona, New Hampshire, and even Illinois," as reported by WND.

The rest of the mainstream media, though, seemed to have gone on total blackout the last couple of weeks, neglecting to report on either the quite extraordinary subject matter of the Georgia hearings or the failure of Obama and his defense team to respectfully respond and appear in court.

Whatever one's opinions on the constitutional definition of "natural born citizen," the arrogance exhibited by this president and his defense attorney to the judiciary of a state, and the abject lack of reporting by the major networks and mainstream media, should trouble every citizen in the nation.

More remarkably, such behavior, especially when viewed as part of a disturbing pattern throughout this administration, should be of grave concern to members of Congress.

And the fact that Judge Malihi took note of and relied upon on the established rule of statutory construction in his earlier order, but then made assertions contrary to that principle in his final decision, should not go unnoticed by those versed in constitutional law.

Opponents of the controversial birthright citizenship practice should also take note, since Judge Malihi's opinion further entrenches the notion that every baby born on U.S. soil, regardless of the citizenship or domicile of its parents (presumably even an "anchor baby" or "birth tourist" baby) is a "natural born" citizen. So would have been Anwar al-Awlaki.

I wonder if the founders of the Constitution, the framers of the 14th amendment, and the Supreme Court in the case of Wong Kim Ark, ever imagined that such an idea would be considered the rule of law. The mainstream media calls those who dare to argue otherwise "crazy" and "racist" "birthers."

Obama may have won the Georgia ballot challenge, but the rule of law and the Constitution suffered a crippling blow.

President Obama's name should appear on Georgia's 2012 presidential ballot, in the official opinion of Judge Michael Malihi of Georgia's Office of State Administrative Hearings (OSAH), issued on February 3. Judge Malihi's decision is the result of hearings held January 26 on three separate actions brought by several Georgia residents. Under Georgia law, Secretary of State Brian Kemp had referred the challenges, filed last November, to the OSAH for a recommendation.

An earlier American Thinker article on the ballot challenges noted the absence of Obama's attorney, Michael Jablonski, from the hearings. Judge Malihi took note of the failure to participate in the opening page of his decision:

Ordinarily, the Court would enter a default order against the party that fails to participate in any stage of a proceeding...Nonetheless, despite the Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the merits of their arguments and evidence. The Court granted Plaintiff's request.

Based on the pre-hearing conference with the Judge, the plaintiffs expected an outcome of at least such a default judgment, and hoped that a ruling in their favor, based on the merits, was possible.

Two of the challenges, represented by attorney Van Irion of the Liberty Legal Foundation and Georgia Rep. J. Mark Hatfield, did not focus on Obama's place of birth or the infamous birth certificate. Rather, Irion and Hatfield contended that Obama, with his non-US citizen father, is not a "natural born" citizen according to the rule of statutory construction in the interpretation of the Constitution and existing Supreme Court precedent. (Further explanation of those assertions is contained in a comprehensive amicus brief submitted to the court, prepared by attorney Leo Donofrio.) The third challenge, represented by California attorney Orly Taitz, also addressed the validity of Obama's posted birth certificate and social security number.

Obama's attorney, Michael Jablonski, in his motion to dismiss the challenges, argued that the state had no authority to interfere in national elections. However, Judge Malihi, in his denial to Jablonski's motion noted that Georgia law specifically requires that "[e]very candidate...shall meet the constitutional and statutory qualifications for holding the office being sought" and that "[b]oth the Secretary of State and the electors of Georgia are granted the authority under the Code to challenge the qualifications of a candidate."

Judge Malihi's denial to the motion to dismiss also emphasized the rule of statutory construction:

Statutory provisions must be read as they are written...When the Court construes a constitutional or statutory provision, "the first step...is to examine the plain statutory language."..."Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden." ... [T]his Court is not "authorized either to read into or read out that which would add to or change its meaning."

In his sweeping denial of the Plaintiff's challenges, however, Judge Malihi did not mention the principle, and instead relied on the 2009 case of Ankeny v Governor, stating that "[t]he Indiana Court determined that a person qualifies as a natural born citizen if he was born in the United States because he became a United States citizen at birth."

Interestingly, Judge Malihi footnoted that particular statement with the assertion: "This Court recognizes that the Wong Kim Ark case was not deciding the meaning of 'natural born citizen' for the purposes of determining presidential qualifications; however, this Court finds the Indiana Court's analysis and reliance on these cases to be persuasive."

It must also be noted that the Indiana decision contains another similar and interesting footnote: "We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a 'natural born Citizen' using the Constitution's Article II language is immaterial."

In other words, Judge Malihi found more persuasive than the long-established principle of statutory construction, a State's Court of Appeals opinion and its unsupported contention that the Constitution's language "is immaterial."

In the 1898 case ofWong Kim Ark, the Supreme Court determined that Ark, born to non-citizen Chinese parents permanently and legally domiciled in the U.S., was a citizen (though it did not describe him as a "natural born" citizen). In its actual historical context, however, Ark's situation was governed by a treaty in effect between the U.S. and China -- a treaty that originally recognized the transfer of allegiance of Chinese making their permanent homes in America, but, as later amended, also prevented Ark's parents from ever naturalizing as U.S. citizens. In fact, as Donofrio explains, unlike other native-born children of alien parents of other nationalities, Ark was not born with the dual allegiance (i.e. dual citizenship) that many experts contend the 14th amendment's "subject to the jurisdiction" language was meant to prevent.

And according to the principle of statutory construction, the phrase "and subject to the jurisdiction thereof" would not be superfluous to the preceding phrase in the amendment's citizenship clause: "born or naturalized in the United States."

It was Obama's dual citizenship, the result of his having a non-citizen father temporarily resident in the U.S., that the plaintiffs in the Georgia challenges asserted precluded his "natural born" eligibility. Obama may have been born in the country, but he was not born completely subject to its jurisdiction, or in the words of one of the framers of the 14th amendment, "not owing allegiance to anybody else."

As to the specific claims in Taitz's challenge, the Judge found that "the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative value, and thus wholly insufficient to support Plaintiff's allegations."

Both Irion and Hatfield had also asked the court to recommend a finding of contempt for Obama's failure to appear in the proceedings. Judge Malihi did not agree, and in his decision merely wrote: "By deciding this matter on the merits, the Court in no way condones the conduct or legal scholarship of Defendant's attorney, Mr. Jablonski."

Georgia represents 16 electoral votes, which Obama lost in 2008 with 47%, so an Obama win in the state was not expected, even though now he is assured of having his name included on the ballot. However, the eligibility issue is still a major concern to many citizens, and "is gaining traction in other states, too, including Alabama, Tennessee, Arizona, New Hampshire, and even Illinois," as reported by WND.

The rest of the mainstream media, though, seemed to have gone on total blackout the last couple of weeks, neglecting to report on either the quite extraordinary subject matter of the Georgia hearings or the failure of Obama and his defense team to respectfully respond and appear in court.

Whatever one's opinions on the constitutional definition of "natural born citizen," the arrogance exhibited by this president and his defense attorney to the judiciary of a state, and the abject lack of reporting by the major networks and mainstream media, should trouble every citizen in the nation.

More remarkably, such behavior, especially when viewed as part of a disturbing pattern throughout this administration, should be of grave concern to members of Congress.

And the fact that Judge Malihi took note of and relied upon on the established rule of statutory construction in his earlier order, but then made assertions contrary to that principle in his final decision, should not go unnoticed by those versed in constitutional law.

Opponents of the controversial birthright citizenship practice should also take note, since Judge Malihi's opinion further entrenches the notion that every baby born on U.S. soil, regardless of the citizenship or domicile of its parents (presumably even an "anchor baby" or "birth tourist" baby) is a "natural born" citizen. So would have been Anwar al-Awlaki.

I wonder if the founders of the Constitution, the framers of the 14th amendment, and the Supreme Court in the case of Wong Kim Ark, ever imagined that such an idea would be considered the rule of law. The mainstream media calls those who dare to argue otherwise "crazy" and "racist" "birthers."

Obama may have won the Georgia ballot challenge, but the rule of law and the Constitution suffered a crippling blow.